Hearsay is a confusing concepts and even many lawyer misunderstand. Much of that misunderstand comes from “exceptions” to Hearsay.

Hearsay is an out of court statement offered for the truth of the matter that is the subject of the statement. It can be spoken words but it can also be a written document, like a chemical report of blood from a DUI or a drug test report. At trial, hearsay is inadmissible unless the attorneys stipulate (agree) that the statement is admissible. If there isn’t a stipulation, the district attorney must produce the statement’s declarant. While hearsay is generally inadmissible, courts will permit it at preliminary hearings. In Pennsylvania, there are 2 cases which are often cited by the prosecution Commonwealth v. Rick, 366 A.2d 302 (Pa. Super. 1976) and Commonwealth v. Branch, 437 A.2d 748 (Pa. Super. 1981). The district attorney will often say that he or she offering the statement or the document under “Rick and Branch.” The DA is telling the court that the document or statement is hearsay but that these 2 cases make it admissible hearsay.

In the Rick case, a Pennsylvania State Trooper was investigating an accident but was unable to interview Defendant Rick, who was being treated for injuries at the hospital. The trooper, however, spoke with the attending physician, who provided a copy of the blood test – indicating Rick’s blood-alcohol level was .18% (more than 2 times the legal limit of .08 for a DUI in Pennsylvania). Rick was charged with driving under the influence (DUI) and the district attorney presented the report at the preliminary hearing but didn’t produce the doctor or any witness to testify about. While the defense objected to the report as hearsay, the judge allowed it into evidence.

The judge ruled that although the chemist’s report, standing by itself, would have been inadmissible at trial as hearsay, the question at a preliminary hearing is not whether there is sufficient evidence to prove the defendant guilty beyond a reasonable doubt. At a preliminary hearing, this issue is whether the prosecution must be dismissed because there is nothing to indicate that the defendant is connected with a crime.

In the Branch case, the defendant, Branch, was arrested for a shooting death—murder (homicide). At the preliminary hearing, the police officer testified that stated that the victim’s brother witnessed Branch shoot the victim. The victim’s brother, however, didn’t testify, although the prosecution said he would be available for trial. The judge in this case allowed the Hearsay at a preliminary hearing because the district attorney (prosecution) represented that the victim’s brother would be available as a witness at the time of trial. The judge therefore ruled that hearsay evidence, while inadmissible at trial, may be admitted at the preliminary hearing stage and may be sufficient to establish a prima facie case.

Hearsay is an important concept in any criminal trial. Your attorney must have a strong command of it to properly defend you.

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